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Magna_carta_memorial

Jurisdiction clauses, legal rules and rulers

AAP reports that this week a Magna Carta manuscript was sold at a Sotheby's auction for A$24.8 million to an anonymous telephone bidder.

Ross Perot's foundation has owned it since 1984. Previously it was held by the Brudenell family of Northamptonshire, England since the late 14th or early 15th centuries.

Apparently 17 Magna Carta manuscripts  have survived, with only two held outside Britain.

magna_carta_canberra

One dating from 1297 can be seen at Parliament House in Canberra. It was acquired in 1952. It was inspected in that year by the British High Commissioner (photo right, source: National Library of Australia).

The Magna Carta is not one document. Many versions and documents are referred to when we use the term.

In a 2006 BBC poll, 15 June, the date of the signing of the original 1215 Magna Carta, was the most popular to  be a "Britain Day", a day to celebrate British identity. Melvyn Bragg listed the Magna Carta in 12 Books that Changed the World (Hodder Stoughton: London, 2006).

Popular myths surrounds the Magna Carta, including claims it granted rights or freedoms to commoners. It didn't. It arrives near the beginning of what I loosely referred to as the "paper law" era in Business law: yesterday. Wikipedia's article on the Magna Carta discusses the myths and a great deal more.

The Magna Carta is a foundation for English constitutional law and English common law generally.

It is part of a long line of progressive legal change. The English have a great deal to be proud of in their creation of common law, as discussed in Common law helps you go global with your IP.

The tussle for jurisdictional power

Let's shift a gear to today's legal globalisation path and now postulate about the future of the common law.

In recent decades as the international language of business became English, competition was evident between  the law of London and the law of New York. The competition was over whose law and whose legal jurisdiction would inherit the Earth.

Now the Golden Rule is that "He who has the gold, makes the rules." Therefore London and New York typically made the rules. After all, they have for some time been the capitals of global capital.

architecture_of_diplomacyMore on point, lawyers trained in English or American law got to decide which law to apply to say a bank finance transaction in deal making rooms in Berlin, Bangalore or Beijing. In each meeting a tusstle involved whether the jurisdiction clause of the finance contract should say the law of New York applies, or the law of London applies. These types of clauses are sometimes also known as governing law clauses.

Interestingly there is evidence Germans, Arabs, and lawyers from other regions felt comfortable with the application of the laws of either New York or London. They regarded both laws as having a level of predictability.

Amid the tussle Australian law firms and lawyers in North or South East Asia kept silent. They had no choice, few wanted their laws anyway. This is one reason cited for why Australian law firms have operated at a disadvantage against rival UK or American firms even in "our region".

So since at least the mid-1980s the deal making room tussle over jurisdiction clauses in international commercial law often remained between lawyers from the supreme metropoles of New York and London.

By the mid-1990s it looked, at least to me, that the Americans would come out the winners. It may be silly, but my thinking was influenced by another rule: "He who controls the contract document controls the transaction." Documents have for some time been controlled by Microsoft Word, a very clever American tool. It defaults to American spelling so users of English worldwide (including my Australian clients) often unintentionally use American spelling.

But the game shifted in 2007. New signs emerged.

  • regulation_enron_kenneth_k._layAmerica's image and economy soured under President George Bush. One items of interesting evidence is found in The Architecture of Diplomacy: Building America's Embassies. Architectural historian Jane C. Loeffler argues the style of  America's embassies has morphed in design from inviting modernist symbols into forbidding military fortresses in our time.
  • The economic muscle of China, India and countries with a non-American legal heritage is adding new counterweights.
  • The US dollar fell dramatically against many currencies including the Euro.
  • London's Magic Circle law firms which once sought to merge with globalising New York Wall Street law firms, started to be courted by the New York firms wanting to set up shop in London. Globalisation via London became easier. This development was brought to my attention last month by Bruce MacEwen in his very interesting post, regulation_soxThoughts on London from a New Yorker at his Adam Smith, Esq. blog. He largely blames excessive Sarbanes-Oxley regulation which followed on debacles in American capitalism with Enron etc.

In 2007 the spotlight was clearly on London and from there it is a mere 19 miles to Runnymede, which too is on the banks of the River Thames. The largest law firms in the world remain those based primarily in the United Kingdom and the United States. Also, again according to Adam Smith Esq., whilst the most profitable law firms in the world remain in New York, in 2005 four of the six largest law firms in the world were based in London.

Now that a former American Presidential candidate's foundation has sold its Magna Carta, the interesting question is from where did the capital come to pay the A$24.8 million at Sotheby's? In the spirit of the Magna Carta, following that gold may locate the next new legal rule, ruler and jurisdictional tussle.


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